Friday, March 14, 2014

Should military judges' terms of office be renewable?

An earlier post on possible changes to the Manual for Courts-Martial suggested fixed terms of office of at least five years' duration for all U.S. military judges. Whether military judicial appointments, whatever their duration, should be renewable raises a further question, as witness the decision of the Constitutional Court of South Africa in Justice Alliance of South Africa v. President of the Republic of South Africa, [2011] ZACC 23. In the course of invalidating a presidential extension of the Chief Justice's term of office, the court wrote: "It is well established on both foreign and local authority that a non-renewable term of office is a prime feature of independence. Indeed, non-renewability is the bedrock of security of tenure and a dyke against judicial favour in passing judgment." Para. 73 (footnotes omitted).

Quaere: if renewability is itself problematic, does that suggest that the duration of a fixed term ought to be longer?

1 comment:

  1. It deeply offends my sense of justice that military judges who lacks judicial independence can try ordinary criminal offences and sentence people to long terms of imprisonment. It used to be the prevalent situation in Canada. The judges were appointed by the minister of National Defence to hear criminal and disciplinary cases brought up by the Judge Advocate General (JAG) and his staff who were the legal advisers of the minister. The military judges were chosen among the staff of lawyers of the JAG’s office. Their performance was assessed by the JAG who argued cases before them. The increase of their remuneration was dependent on the result of that evaluation. They were appointed for renewable terms. They could be removed from office by the minister pursuant to a recommendation made by a Committee presided by the JAG and dominated by the executive and the chain of command!
    The Court Martial Appeal Court of Canada reviewed the situation in Lauzon v. R., (1998) CMAC-415. At par. 33 it wrote;
    [33] The organizational and institutional relationship among the Minister, the Judge Advocate General and the members of his or her Office who represent the Executive, and the military trial judges who hear the Department's cases does not, in our view, afford sufficient guarantees of institutional impartiality and independence. A reasonable person who became aware of the prevailing state of the law and the embarrassingly close relationship which exists between the Executive and the judiciary could only conclude, or at least would be justified in perceiving and believing, that the Presidents of the Standing Courts Martial are not free from pressure by the Executive at the institutional level. In other words, such a person could reasonably conclude that the military trial judges act through the Executive, with the Executive and for the Executive.

    However, at the time, the CMAC validated the short-term renewable appointment process of military judges. So legislative reform was made which ensured the administrative independence and the financial security of military judges.
    Canadian jurisprudence on the issue of judicial independence evolved and security of tenure was made a tenet of that independence for civilian judges by the Supreme Court of Canada. Parliament failed to act with respect to military judges who, like the civilian courts, tried ordinary criminal law offences. So the question of security of tenure, fiercely opposed by the chain of command, was addressed by the CMAC in Leblanc v. R., 2011 CMAC 2.

    Now Canadian military judges enjoy security of tenure. They remain in office during good behaviour until their retirement age which has been fixed at the age of 60. Unfortunately they still hold a rank and their decisions can still be interfered with by the chain of command notwithstanding the fact that the decisions can be appealed to the CMAC.
    It is not only important, but also fundamental from the perspective of their judicial independence, that the appointment of military judges be a long term appointment. Otherwise the lapse of time becomes an infallible and convenient mean of removing those whose decisions do not please their masters.


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